Helwing v. City of New York

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

--------------------------------------X

TOMASZ PIOTR HELWING,

Plaintiff, MEMORANDUM & ORDER

18-CV-3764

-against-

CITY OF NEW YORK, et al.,

Defendants.

--------------------------------------X

KIYO A. MATSUMOTO, United States District Judge:

On July 17, 2018, Plaintiff Tomasz Piotr Helwing

(“Plaintiff”), proceeding pro se, brought action against John

and Jane Doe, Jan Pszeniczny, Greg Sobolewski1, and the City of

New York pursuant to 42 U.S.C. § 1983. (See ECF No. 1,

Complaint.) In his second amended complaint, plaintiff alleges

1 Because plaintiff failed to serve Greg Sobolewski properly under Federal

Rule of Civil Procedure 4(m), the claims against Sobolewski were dismissed on

May 19, 2020. (See Dkt. Order 5/19/2020.) By letter dated February 20, 2020,

Mr. Ron D’Addario, Esq. informed the court of Jan Pszeniczny’s death, and on

March 3, 2020, this court ordered that Mr. Pszeniczny’s counsel provide the

identity of an authorized representative on behalf of decedent Mr. Pszeniczny's

estate. (See ECF No. 54, Letter by Jan Pszeniczny, 2/20/2020; Dkt. Order

3/3/2020.) On July 6, 2020, counsel for the decedent advised the court that

Mr. Bert Levine, Esq. agreed to serve as the representative for Mr. Pszeniczny’s

estate. (See ECF No. 71, Certificate of Service.) By Order dated July 15,

2020, the court ordered that plaintiff move for substitution pursuant to Federal

Rule of Civil Procedure 25 no later than October 13, 2020, and advised plaintiff

that “failure to timely move for substitution shall warrant dismissal of Mr.

Pszeniczny, and his authorized representative” and that “the court will not

extend plaintiff's deadline to move for substitution except for good cause

shown.” (See Dkt. Order, 7/15/2020.) Mr. D’Addario was ordered to serve

Plaintiff with a copy of the July 15, 2020 order and note service on the docket,

but Mr. D’Addario failed to comply. Plaintiff has not moved for substitution.

As to the individual officers, Pawel Pszeniczny, Piotr Pszeniczny, John Doe,

and Jane Doe, plaintiff has failed to properly serve these parties pursuant to

Federal Rule of Civil Procedure 4(m). The City requests in its motion that the

court consider its arguments in considering the claims against the officers.

(Def. Mot. at 3.)

excessive force, false arrest, and malicious prosecution. (See

generally ECF No. 45, Second Amended Complaint (“SAC”).)

Presently before this court is the motion of the City of New

York (“Defendant” or “City”) to dismiss the complaint for

failure to state a claim pursuant to Federal Rule of Civil

Procedure (“Rule”) 12(b)(6), plaintiff’s Affidavit in

Opposition, and defendant’s Reply to plaintiff’s Affidavit in

Opposition. (ECF No. 74-2, Motion to Dismiss (“Def. Mot.”); ECF

No. 73, Affidavit in Opposition; ECF No. 75, Reply in Support of

Defendant City of New York's Motion to Dismiss.) For the

reasons set forth below, the court grants the City’s motion to

dismiss for failure to state a claim.

BACKGROUND

I. Factual Background

In considering the City’s Rule 12(b)(6) motion, the

Court accepts as true the following facts alleged in plaintiff’s

Second Amended Complaint and has also considered plaintiff’s

prior iterations of his complaint. (See ECF No. 1; ECF No. 31;

ECF No. 33; ECF No. 34; and ECF No. 45.) Mr. Helwing is a

Polish citizen and resident of New York State. (SAC at ¶ 3.)

Starting in October 2009, plaintiff began to be harassed and

attacked by Jan Pszeniczny. (Id. at ¶¶ 6-11.) Mr. Helwing

alleges that in December 2013 he was subjected to excessive

2

force when he was assaulted by two New York Police Department

(“NYPD”) officers, Pawel Pszeniczny and Piotr Pszeniczny (sons

of deceased defendant, Jan Pszeniczny), near 6037 and 6039 Fresh

Pond Road in Maspeth, NY. (Id. at ¶¶ 12, 26-28.) During this

incident, the police officers “kicked [him] on [the] sidewalk

until [he] lost consciousness [and] . . . left [him] on the

sidewalk without signs of life in a pool of [his own] blood.”

(Id. at ¶ 12.) After the incident, Plaintiff alleges that

members of the NYPD continued to “act[] like mobsters.” (Id. at

¶ 16.)

Plaintiff also alleges that he was falsely arrested on

March 8, 20152 for stealing a “WIFI camera” from Jan Pszeniczny.

(Id. at ¶ 17.) After the arrest, while at the precinct, a

police officer kept plaintiff detained for longer than necessary

and “was very unkind and hostile.” (Id.) Plaintiff further

alleges that he was maliciously prosecuted from March 2015 to

July 17, 2017. (Id. at ¶ 19.) Mr. Helwing states that for two

years “lawyers and judge(s) . . . denied me the right to an

equal trial and urged me by all means to admit to the deed I did

not commit (referring to the theft).” (Id.) Plaintiff alleges

2 Although the plaintiff’s complaint states that this arrest occurred on

March 8, 2018, New York City Police Department arrest reports confirm that the

arrest took place on March 8, 2015. (See Def. Motion at Exhibit D.)

3

a claim of municipal liability against the City Defendant. (See

generally Id.)

II. Procedural History

Mr. Helwing initiated the instant 42 U.S.C. § 1983

action against the City of New York, et. al. on July 17, 2018.

(See ECF No. 1.) Plaintiff filed an Amended Complaint in three

parts: “Part I” was submitted on June 14, 2019, and “Part II”

and “Part III” were submitted on July 31, 2019. (See ECF No.

31; ECF No. 33; ECF No. 34.) Plaintiff then filed a Second

Amended Complaint on November 26, 2019. (See ECF No. 45.)

On December 10, 2019, Defendant requested a pre-motion

conference to discuss its anticipated motion to dismiss

plaintiff’s Second Amended Complaint. (ECF No. 46, Motion for

Pre-Motion Conference.) After several adjournment requests by

the parties, the court ordered a pre-motion conference for March

2, 2020. (Scheduling Order 2/27/2020.) At the pre-motion

conference, the court adopted a briefing schedule for

Defendant’s motion to dismiss. (Dkt. Order 3/3/2020.) On April

1, 2020, the City of New York filed its motion to dismiss

pursuant to Rule 12(b)(6). (See Def. Mot.)

On April 9, 2020, the court held another status

conference and approved plaintiff’s request for a revised

briefing schedule. (Dkt. Order 4/9/2020.) On June 2, 2020,

4

plaintiff filed a motion for extension of time to file his

opposition to the City’s motion. (ECF No. 65, Motion for

Extension of Time.) The Court granted the extension on June 6,

2020. (Dkt. Order 6/6/2020.) Plaintiff requested another

extension to file his opposition on July 1, 2020. (ECF No. 68,

Motion for Extension of Time.) On July 6, 2020, this court

reluctantly granted plaintiff another extension to file his

opposition and advised that “no other extensions will be granted

under any circumstances.” (Dkt. Order 7/6/2020.) Finally, on

July 20, 2020, plaintiff filed his opposition to defendant’s

motion. (ECF No. 73, Affidavit in Opposition to Motion.)

On August 3, 2020, defendant filed a reply in response

to plaintiff’s opposition to defendant’s motion to dismiss.

(ECF No. 75, Reply in Support of Defendant City of New York's

Motion to Dismiss.)

LEGAL STANDARD

Plaintiff’s complaint must be dismissed if it fails to

state a claim upon which relief may be granted. Fed. R. Civ. P.

12(b)(6). In deciding a motion to dismiss under Rule 12(b)(6),

the court evaluates the sufficiency of a complaint under a “two-

pronged approach.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

First, courts are not bound to accept legal conclusions when

examining the sufficiency of a complaint. See id. at 678

5

(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555

(2007)). Second, the court must assume all well-pleaded facts

are true, and then “determine whether they plausibly give rise

to an entitlement to relief.” Iqbal, 556 U.S. at 679. A claim

is plausible “when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. at 678.

Plaintiff brought this action pursuant to 42 U.S.C. §

1983 (“Section 1983”), which provides:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State . . . subjects, or causes to be subjected,

any citizen of the United States . . . to the

deprivation of any rights, privileges, or

immunities secured by the Constitution and laws,

shall be liable to the party injured . . . .

42 U.S.C. § 1983. Section 1983 “is not itself a source of

substantive rights, but a method for vindicating federal rights

elsewhere conferred by those parts of the United States

Constitution and federal statutes that it describes.” Baker v.

McCollan, 443 U.S. 137, 144 n.3 (1979); see also Thomas v.

Roach, 165 F.3d 137, 142 (2d Cir. 1999).

To maintain a Section 1983 claim, a plaintiff must

plausibly allege two elements. First, “the conduct complained

of must have been committed by a person acting under color of

state law.” Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir.

6

1994). Second, “the conduct complained of must have deprived a

person of rights, privileges, or immunities secured by the

Constitution or laws of the United States.” Id.; see also

McCugan v. Aldana- Brnier, 752 F.3d 224, 229 (2d Cir. 2014).

Where, as here, a plaintiff is proceeding pro se, the

court must construe the plaintiff’s pleadings liberally. See,

e.g., Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191

(2d Cir. 2008); McEachin v. McGuinnis, 357 F.3d 197, 200 (2d

Cir. 2004). However, a pro se complaint must still state a

claim to relief that is plausible. See Harris v. Mills, 572

F.3d 66, 72 (2d Cir. 2009). Plaintiff’s Second Amended

Complaint is liberally construed to allege claims of municipal

liability, false arrest, malicious prosecution, and state law

claims.

DISCUSSION

Defendant moves for dismissal pursuant to Rule

12(b)(6) on the grounds that: “(1) plaintiff fails to state a

viable claim for municipal liability against defendant City of

New York; (2) any claims for false arrest and excessive force

are time-barred by the applicable statute of limitations; (3)

any claim for malicious prosecution fails as a matter of law;

and (4) any state law claims plaintiff purports to assert are

7

barred for failing to comply with conditions precedent to suit.”

(Def. Mot. at 2.)

In his opposition to Defendant’s motion, Plaintiff

does not directly respond to the Defendant’s arguments and

instead alleges additional claims of criminal conspiracy under

the Racketeer Influenced and Corrupt Organizations (“RICO”) Act.

(See ECF No. 73, Affidavit in Opposition to Motion.) In its

response, the City of New York reiterates its original

challenges to plaintiff’s claims and further argues that

plaintiff has abandoned his claims, that plaintiff’s RICO

allegations are improper and should not be considered, and that

the City nonetheless does not have the criminal intent required

to be held civilly liable under RICO. (See ECF No. 75, Reply in

Support of Defendant City of New York's Motion to Dismiss.)

The court agrees with the defendant’s argument that

plaintiff has effectively abandoned his claims against defendant

by failing to meaningfully address the contentions raised in the

motion to dismiss. In the interest of completeness, however,

the court will also address the Plaintiff’s claims directly in

Parts II-VI of this decision. Additionally, although plaintiff

has failed, without a showing of good cause, to properly serve

the individual NYPD officers named in his Second Amended

Complaint with process pursuant to Rule 4(m), this court will

8

also consider the excessive force, false arrest, and malicious

prosecution claims alleged against the officers because even if

plaintiff had properly served the officers, his claims against

them are time-barred under Section 1983.

I. Abandonment of Claims

“District courts in this circuit have found that ‘[a]

plaintiff's failure to respond to contentions raised in a motion

to dismiss claim constitutes an abandonment of those

claims.” Laface v. E. Suffolk Boces, 349 F. Supp. 3d 126, 161

(E.D.N.Y. 2018) (quoting Youmans v. Schiro, No. 12 Civ. 3690,

2013 WL 6284422, at *5 (S.D.N.Y. Dec. 3, 2013). In his

opposition to defendant’s motion to dismiss, Plaintiff does not

directly address Defendant’s arguments. (See generally ECF No.

73, Affidavit in Opposition to Motion.) Instead, plaintiff

invokes RICO and introduces new “facts” unrelated to his

previous claims and makes sweeping statements about corruption

without additional factual support. (Id.) These new, unrelated

allegations are outside the scope of the present case and do not

sufficiently address the motion to dismiss. Moreover, a

plaintiff may not allege new facts and legal claims in

opposition to a motion to dismiss. Wright v. Ernst Young LLP,

152 F. 3d 169, 178 (2d Cir. 1998.) Plaintiff broadly states

that “this is a case of a[n] attempt to murder (beating a

9

disabled person to the unconsciousness shortly after a serious

back surgery . . .),” (Id. at 4), but does not provide any

arguments in opposition to defendant’s motion. See Bonilla v.

Smithfield Assoc. LLC, 09 Civ. 1549, 2009 WL 4457304 at *4

(S.D.N.Y. Dec.4, 2009) (dismissing plaintiff's claims as

abandoned by failing to address them in his opposition motion to

defendant's motion to dismiss all claims.)

As such, the court’s consideration is confined to

Plaintiff’s claims of municipal liability, false arrest,

excessive force, and malicious prosecution as outlined in the

second amended complaint. However, even if plaintiff had not

abandoned his claims, the City’s motion to dismiss must be

granted.

II. Municipal Liability

To state a cognizable claim for monetary relief against

a municipal defendant under § 1983, Plaintiff must allege the

existence of an officially adopted policy or custom that directly

caused the alleged constitutional deprivation. Bd. of Cnty.

Comm'rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 403-04 (1997)

(citing Monell v. New York City Dep't of Soc. Servs., 436 U.S.

658, 694 (1978)). “[M]ere assertions that a municipality has a

custom or policy of violating constitutional rights are

insufficient to state a Section 1983 claim ‘in the absence of

10

allegations of fact tending to support, at least circumstantially,

such an inference.’” Davis v. Cnty. of Nassau, 355 F. Supp. 2d

668, 678 (E.D.N.Y. 2005) (quoting Dwares v. City of New York, 985

F.2d 94, 100 (2d Cir. 1993)). The alleged “custom and policy must

be described with factual specificity, rather than bare and

conclusory statements.” Perez v. Metro. Transit Auth., No. 11-CV-

8655, 2012 WL 1943943, at *4 (S.D.N.Y. May 29, 2012) (citing Perez

v. Cnty. of Westchester, 83 F. Supp. 2d 435, 438 (S.D.N.Y. 2000),

aff’d, 242 F.3d 367 (2d Cir. 2000) (summary order)).

In his Second Amended Complaint, plaintiff appears to

assert that the City adopted a policy of ignoring the

constitutional violations arising out of the NYPD and the Queens

Criminal Court. (Compl. at ¶¶ 12, 16-18.) Plaintiff, however,

does not allege or describe the official municipal custom or policy

that he challenges, nor does he provide any factual allegations

raising a plausible the inference that this unidentified municipal

custom or policy directly caused the injuries for which he seeks

relief.

Instead, Plaintiff’s municipal liability claim rests

primarily upon his tenuous contention that his constitutional

rights were violated as a result of the City’s deliberate

indifference to the allegedly unlawful conduct of the NYPD and the

“misconduct and suspicious behavior of . . . all lawyers correlated

11

to the criminal case (Prosecutor(s), Judge(s), Court Reporter(s)

. . ..” (Id. at ¶ 18.) As Plaintiff offers no other facts of the

existence of an alleged municipal “practice and/or custom” causing

the violation of federal constitutional rights, he has not provided

the required plausible factual specificity under Rule 12(b)(6).

Accordingly, the municipal liability claim against the defendant

is dismissed.

III. Statute of Limitations

Plaintiff brought his constitutional claims pursuant

to Section 1983, which does not contain a statute of

limitations. “Since Congress did not enact a statute of

limitations governing actions brought under [Section] 1983, the

courts must borrow a state statute of limitations.” Lounsbury

v. Jeffries, 25 F.3d 131, 133 (2d Cir. 1994). The Supreme Court

has directed that in Section 1983 actions, the applicable

statute of limitations is the one that “the [s]tate [in which

the cause of action arose] provides for personal-injury torts.”

Wallace v. Kato, 549 U.S. 384, 387 (2007). “In New York, the

personal injury statute of limitations that applies to [S]ection

1983 actions is three years.” Quiles v. City of New York, No.

01-cv-10934, 2003 WL 21961008, at *5 (S.D.N.Y. Aug. 13, 2003);

see Paige v. Police Dep’t of City of Schenectady, 264 F.3d 197,

199 n.2 (2d Cir. 2001). Consequently, the statute of

12

limitations for Section 1983 actions brought in New York federal

courts is also three years.

A. Plaintiff’s False Arrest Claim is Time-Barred

Defendant argues that plaintiff’s false arrest claim

against the City is time-barred as the arrest at issue occurred

on March 8, 2015, and any claim for false arrest accrued at the

time of the arrest and expired on March 8, 2018. (Def. Mot. at

8.) The court agrees that any false arrest claim derived from

the plaintiff’s March 8, 2015 arrest is time-barred and must be

dismissed.

Although Section 1983 claims accrue when the plaintiff

knows or has reason to know of the harm, Connolly v. McCall, 254

F.3d 36, 41 (2d Cir. 2001), the Supreme Court has held that the

limitations period for false imprisonment and false arrest, a

species of false imprisonment, begins to run “when the alleged

false imprisonment ends.” Wallace v. Kato, 549 U.S. 384, 388-89

(2007) (internal quotation mark omitted); see also Lynch v.

Suffolk Cty. Police Dep’t, Inc., 348 F. App’x 672, 675 (2009).

Applying Wallace v. Kato, the Second Circuit has held that

“false imprisonment ends when ‘the victim becomes held pursuant

to legal process,’” e.g., when he is arraigned on charges.

Lynch, 348 F. App’x at 675 (quoting Wallace, 549 U.S. at 388-

89). Given the Supreme Court’s intervening decision in Wallace,

13

the court finds that plaintiff’s false arrest claim accrued on

the date of his arraignment, listed as March 25, 2015 on the

Queens Criminal Court Certificate of Disposition, of which the

court takes judicial notice. (Def. Mot. at Exhibit E.) See

Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002).

Thus, because plaintiff does not allege facts that

support a continuing violation or equitable tolling, he had

until March 25, 2018, at the latest, to commence his action for

false arrest. As such, plaintiff’s false arrest claim, filed on

July 17, 2018, is untimely regardless of whether it accrued on

March 8, 2015, as the Defendant argues, or March 25, 2015. The

false arrest claim is dismissed.

B. Plaintiff’s Excessive Force Claim is Time-Barred

Defendant argues that Plaintiff’s excessive force

claim is time-barred as the incident at issue took place in

December 2013 and any claim for excessive force would have

accrued in December 2013 and expired in December 2016. (Def.

Mot. at 8.) The court agrees with the Defendant that any

excessive force claim arising from the December 2013 incident is

time-barred and is dismissed. The court also applies its

statute of limitations analysis to the officers named in

plaintiff’s Second Amended Complaint, Pawel Pszeniczny and Piotr

Pszeniczny, and John and Jane Doe, even though plaintiff has

14

failed without good cause to serve the officers and the claims

against the officers can be and are dismissed pursuant to Rule

4(m). See Awan v. Experienced Moving Co., No. 18-CV-5137, 2019

WL 5088068, at *2 (E.D.N.Y. Aug. 23, 2019) (dismissing unserved

defendants where pro se plaintiff had filed the complaint 11

months prior), adopted by 2019 WL 5086687 (E.D.N.Y. Oct. 9,

2019), appeal dismissed, No. 19-3625 (2d Cir. Jan. 7, 2020);

Kelley v. Universal Music Grp., No. 14-CV-2968, 2017 WL 2889505,

at *3 (S.D.N.Y. July 5, 2017) (dismissing defendants where pro

se plaintiffs failed to effect service of amended complaint or

second amended complaint on those defendants), adopted by 2017

WL 3995623 (S.D.N.Y. Sept. 11, 2017); Terry v. Village of

Ossining, No. 12-CV-5855, 2013 WL 5952834, at *5 (S.D.N.Y. Nov.

5, 2013) (dismissing defendant in a pro se action without

prejudice where the defendant had not yet been served over a

year after the case was originally filed); Landy v. Irizarry,

884 F. Supp. 788, 793 (S.D.N.Y. 1995) (“Even allowing for

Plaintiffs pro se status, given the time he has had to address

the problem it cannot be reasonably concluded that he has been

diligent or made a good faith effort to [effect service].”

(italics omitted)).

“[A]n excessive force claim accrues ‘when the use of

force occurred,’” McClanahan v. Kelly, No. 12-cv-6326, 2014 WL

15

1317612, at *4 (S.D.N.Y. Mar. 31, 2014) (quoting Jefferson v.

Kelly, No. 06-cv-6616, 2008 WL 1840767, at *3 (E.D.N.Y. Apr. 22,

2008)), not when a plaintiff discovers his or her injuries.

“Were it otherwise, the statute would begin to run only after a

plaintiff became satisfied that [s]he had been harmed enough,

placing the supposed statute of repose in the sole hands of the

party seeking relief.” Wallace v. Kato, 549 U.S. 384, 391

(2007). Because Plaintiff concedes that the incident during

which excessive force was allegedly used occurred sometime in

December 2013, the three-year statute of limitations expired in

December 2016, long before plaintiff filed this action on July

17, 2018. (See ECF No.1, Complaint.)

The only way that Plaintiff’s lawsuit would not be

barred by the statute of limitations would be if the court were

to equitably toll the statue. As with the length of the statute

of limitations, federal courts considering whether the statute

is tolled in a Section 1983 lawsuit generally look to the law of

the state in which the constitutional deprivation allegedly

occurred. See Pearl v. City of Long Beach, 296 F.3d 76, 81 (2d

Cir. 2002).

In New York, equitable tolling is only available where

the accrual of the cause of action was concealed from the

plaintiff, or when the defendant prevented the plaintiff from

16

bringing a case. See id. at 82 (“New York appears to use the

label ‘equitable estoppel’ to cover both the circumstances where

the defendant conceals from the plaintiff the fact that he [or

she] has a cause of action [and] where the plaintiff is aware of

his [or her] cause of action, but the defendant induces him [or

her] to forego suit until after the period of limitations has

expired.”) (quotation omitted); see also Abbas v. Dixon, 480

F.3d 636, 642 (2d Cir. 2007) (“Under New York law, the doctrines

of equitable tolling or equitable estoppel may be invoked to

defeat a statute of limitations defense when the plaintiff was

induced by fraud, misrepresentations or deception to refrain

from filing a timely action.”) (quotation omitted). Here, there

is no allegation that plaintiff was unaware of, or that

defendants concealed plaintiff’s cause of action, or that the

defendants prevented Plaintiff from filing his complaint.

Accordingly, equitable tolling does not preserve the plaintiff’s

excessive force claim.

The court acknowledges the harsh nature of the

imposition of a statute of limitations in a case in which

plaintiff alleges that he suffered serious injuries at the hands

of police officers. Still, the court is bound to apply the law

fairly to all, and “strict adherence to the procedural

requirements specified by the legislature is the best guarantee

17

of evenhanded administration of the law.” Mohasco Corp. v.

Silver, 447 U.S. 807, 826 (1980). As such, Plaintiff’s

excessive force claim against the City and the individual

officers is time-barred by the statute of limitations and must

be dismissed.

IV. Malicious Prosecution

Defendant argues that plaintiff fails to meet the

requisite elements to succeed on a malicious prosecution claim.

(Def. Mot. 9-10.) Specifically, Plaintiff has failed to prove

that the criminal proceeding in Queens Criminal Court was

terminated in his favor. (Id.) The court agrees and dismisses

the malicious prosecution claim.

In order to state a malicious prosecution claim, a

plaintiff must plead facts that establish: “‘(1) the initiation

or continuation of a criminal proceeding against plaintiff; (2)

termination of the proceeding in plaintiff’s favor; (3) lack of

probable cause for commencing the proceeding; and (4) actual

malice as a motivation for defendant's actions.’” Manganiello

v. City of New York, 612 F.3d 149, 161 (2d Cir. 2010) (quoting

Murphy v. Lynn, 118 F.3d 938, 947 (2d Cir. 1997)). With regard

to the second element, whether the proceeding terminated in

plaintiff’s favor, the Second Circuit has noted that “[w]hen a

person has been arrested and indicted, absent an affirmative

18

indication that the person is innocent of the offense charged,

the government's failure to proceed does not necessarily

‘impl[y] a lack of reasonable grounds for the prosecution.’”

Lanning v. City of Glens Falls, 908 F.3d 19, 28 (2d Cir. 2018)

(quoting Conway v. Village of Mount Kisco, 750 F.2d 205, 215 (2d

Cir. 1984). As such, when a plaintiff alleges that the charges

against him were dismissed without further factual specifics

regarding the circumstances or grounds on which the dismissal

was granted, this allegation is devoid of facts to affirmatively

indicate innocence. See id. at 28-29 (wherein the court

dismisses the plaintiff’s malicious prosecution claim because he

only alleged that the charges against him “were dismissed”

without alleging facts that the dismissal affirmatively

indicated his innocence).

In this case, Plaintiff’s charge was dismissed in the

furtherance of justice on July 17, 2017, according to documents

from the Queens Criminal Court. (Def. Mot. at Exhibit 8, Queens

Criminal Court Certificate of Disposition.) Although Plaintiff

alleges that he was innocent and felt threatened by a prosecutor

in his case, he does not provide additional details to support a

claim that the dismissal of charges affirmatively indicated his

innocence. This court therefore concludes that Plaintiff failed

19

to plead a viable malicious prosecution claim under Section 1983

and dismisses this claim.

V. State Law Claims

Defendant contends that plaintiff’s failure to comply

with New York’s notice of claim requirements, which govern

pendent state law claims in federal court and are “construed

strictly,” “ordinarily requires dismissal for failure to state a

cause of action.” Hardy v. New York City Health & Hosp. Corp.,

164 F.3d 789, 793-96 (2d Cir. 1999) (citations omitted)

(affirming Rule 12 dismissal where plaintiff failed to plead

that she had filed a notice of claim).

Under New York law, as a precondition to bringing a

state law claim against a municipality or any employee thereof,

a plaintiff must file a notice of claim within ninety days after

his claim accrues. N.Y. Gen. Mun. Law § 50-e. Moreover, a

plaintiff is required to “affirmatively plead in his complaint

that he has filed a notice of claim.” Febres v. City of New

York, 238 F.R.D. 377, 393 (S.D.N.Y. 2006). Because the

Plaintiff in this case has made no mention of filing a notice of

claim for any state law claims in this action, any state law

claims arising from the alleged December 2013 incident, March 8,

2015 arrest, or March 2015 through July 2017 prosecution are

dismissed as to all defendants.

20

VI. Other Potential Claims

In his affidavit in opposition to Defendant’s motion

to dismiss, Plaintiff also alleges that the Defendant may be

liable under the Racketeer Influenced and Corrupt Organizations

Act (“RICO”). (See ECF No. 73, Affidavit in Opposition to

Motion.) Defendant, citing Wright v. Ernst Young, 152 F. 3d at

178, correctly argues that any newly raised allegations in

opposing a motion to dismiss are improper and should not be

considered, and that in any case the City of New York cannot be

held civilly liable under the RICO statute. (Def. Mot.)

Because the court agrees that any new claims arising from the

Plaintiff’s Opposition to Defendant’s Motion to Dismiss were

improperly raised, the court will not consider these claims.

Moreover, plaintiff cannot successfully bring a RICO challenge

against the City as the City cannot form the requisite intent

for a predicate RICO crime. In re Citisource Sec. Litig., 694

F.Supp. at pp. 1079–80 (the City of New York cannot form

criminal intent to commit predicate acts, thus cannot be held

liable under civil RICO).

CONCLUSION

For the foregoing reasons, Defendant’s motion to

dismiss Plaintiff’s amended complaint is GRANTED. Notably, the

plaintiff’s false arrest claim, excessive force claim, malicious

21

prosecution claim, and related state law claims are dismissed

with prejudice as to the City and its employees because any

amendment would be futile based on the statute of limitations.

See Ellis v. Chao, 336 F.3d 114, 127 (2d Cir. 2003) (citing

Foman v. Davis, 371 U.S. 178, 182 (1962)); see also Burch v.

Pioneer Credit Recovery, Inc., 551 F.3d 122, 126 (2d Cir. 2008)

(“[M]otions to amend should generally be denied in instances of

futility.”) Although Plaintiff has failed to properly serve the

individual officers named in the Second Amended Complaint

pursuant to Rule 4(m), the false arrest, malicious prosecution,

and excessive force claims against the individual officers are

also time-barred, and are therefore dismissed. The New York

State law claims are dismissed against the City and its

employees as the plaintiff has failed to file a notice of claim.

As to Mr. Pszeniczny, by Order dated July 15, 2020,

this court lifted a stay on the plaintiff’s time to move to

substitute the deceased Mr. Jan Pszeniczny because Mr. Bert

Levine, whose office address is listed below, was identified as

the representative of Mr. Pszeniczny’s estate. The Court

ordered plaintiff to move for substituting Mr. Pszeniczny no

later than October 13, 3030, or the claims would be dismissed.

Mr. Ron D'Addario, who appeared on the docket for Mr.

Pszeniczny, was ordered to serve Mr. Helwing with the Court’s

22

July 15, 2020 Order and file a declaration of service, but Mr.

D'Addario failed to do so. Accordingly, this Court grants Mr.

Helwing an additional 45 days to move for substitution. If Mr.

Helwing fails to move for substitution by Thursday, April 15,

2021, his claim against defendant Pszeniczny will be dismissed.

This Court will not grant Mr. Helwing an extension to file the

motion for substitution.

The Clerk of Court is directed to enter judgment in

favor of the Defendant, New York City and its NYPD officers,

serve a copy of this Memorandum and Order and the judgment on

Plaintiff, serve a copy of this Memorandum and Order and the

judgment on Mr. Bert Levine at 965 Manhattan Avenue, Brooklyn,

NY 11222, and note service on the docket.

SO ORDERED.

Dated: Brooklyn, New York

March 1, 2021

___________/s/_______________

Hon. Kiyo A. Matsumoto

United States District Judge

23